High Court Declines Second Look At Athletic-Recruiting Case

The U.S. Supreme Court declined last week to step back into a
lengthy court battle between an athletically powerful private school
and Tennessee's high school sports authority over recruiting
violations.

Brentwood Academy, a suburban Nashville school that has won nine
state football championships, won an important legal round last year
when the Supreme Court ruled that the Tennessee Secondary School
Athletic Association acts with state authority when it enforces its
rules on member schools.

But the 5-4 ruling in February 2001 amounted to only a halftime lead
in the 350-student school's fight with the athletic association. The
case was returned to a federal appeals court to decide the underlying
issue of whether the association's rule against athletic recruiting
violated the private school's right of free speech.

The U.S. Court of Appeals for the 6th Circuit, based in Cincinnati,
largely ruled against Brentwood Academy on that question last July. A
panel of the court held 3-0 that the recruiting rule was
content-neutral and thus was easier to uphold under the First
Amendment.

But the appeals court said the case would have to go back to a
federal district court in Nashville to decide whether the rule was
narrowly tailored to the athletic association's interests.

The Supreme Court on April 1 declined without comment to hear the
private school's appeal of the July appellate-court decision in
Brentwood Academy v. Tennessee Secondary School Athletic
Association (Case No. 01-1117).

The case began in 1997, when Brentwood Academy was investigated for
several alleged recruiting violations. Like many other state athletic
governing bodies, the Tennessee association prohibits its member
schools from using "undue influence" to attract student athletes.

Brentwood ultimately was punished for three rules violations, with
the principal one involving letters written by its football coach
inviting several 8th grade student athletes in public schools to visit
spring football practice. The letters violated the recruiting rule, and
Brentwood's football and basketball teams were barred from the state
playoffs for two seasons, among other penalties.

The school went to court, and a federal district judge ruled in 1998
that the recruiting rule violated its right to free speech. But in its
first ruling in the case, the 6th Circuit court held in 1999 that the
TSSAA was not acting with state authority when it enforced its rules.
It ordered Brentwood's case dismissed.

The Supreme Court took up the school's first appeal to decide only
the question of whether state athletic associations act with government
authority. The high court held that an athletic association such as
Tennessee's, whose membership and governance are dominated by public
schools, acts with government authority and thus its rules must comply
with the U.S. Constitution. ("Sports Group Ruled to Be Arm of
State," Feb. 28, 2001.)

A Second Appeal

The high court sent the case back to the 6th Circuit court to
proceed to the First Amendment issue. In its decision last July on that
question, the appeals court said the rule against recruiting middle
school students did not amount to a total ban on communication between
secondary schools and prospective athletes from feeder schools.

Brentwood could still advertise its academic and athletic programs
and could send out general letters about its school to all middle
school students, the appellate court said. The rule was designed only
to prohibit targeted communication with athletic prospects, the 6th
Circuit court said.

But the appeals court said it could not decide on its own whether
the recruiting rule was "narrowly tailored" to meet the interests put
forth by the athletic association: keeping athletics subordinate to
academics, protecting student athletes from exploitation, and
maintaining a level playing field among its member schools.

The appeals court said the district court would have to take the
first crack at deciding whether those interests of the association were
in fact legitimate. With the Supreme Court's refusal to get involved
yet again, the long-running case will now return to the district
court.

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